‘Putting patients against doctors’: Doctors brace for US Supreme Court ruling on emergency abortions

Dr. Lauren Miller cried on her way to work every day.

Miller, a fetal maternal medicine specialist in Idaho, despaired at the possibility of being forced to tell patients she couldn’t help them. Idaho has one of the strictest abortion bans in the country, meaning Miller could only perform abortions to save a woman’s life — and many patients, even those facing medical emergencies with potentially fatal consequences, were not yet sick enough to qualify.

“All I could say is, ‘We have to get them transported out of state,’” she said. “It just breaks my heart that I knew them and had a relationship with them and that I couldn’t provide them with the same care that I could have provided them a year ago,” before the ban went into effect in Idaho.

One law, however, short allowed Miller to perform emergency abortions, Miller said: a 1986 federal law, virtually unknown outside the medical field, known as the Emergency Medical Treatment and Active Labor Act, or Emtala. That law requires hospitals that receive Medicare dollars to stabilize any patients who show up at their door in the middle of a medical emergency. – a potential lower threshold than what is allowed under Idaho’s ban, which allows abortions when a woman’s life is in danger. If a hospital cannot stabilize a patient, Emtala said, the hospital must transport the patient to an institution that can do so.

But now even Emtala, the subject of a case to be heard this week by the U.S. Supreme Court, could be permanently withdrawn among Miller and other doctors in her situation who do. struggle to understand what role they can play in treating patients in crisis.

Shortly after the court overturned Roe v Wade in 2022 and ushered in abortion bans across the country, the Biden administration stated that Emtala applies to people who may need an emergency abortion and anticipates any bans that state otherwise. It later filed a lawsuit against Idaho, arguing that the abortion ban violates Emtala and forces doctors into an untenable catch-22: If they follow Idaho law, they could be violating a federal law.

“How much risk does a patient have to take, or how sick do they have to get, before it’s okay to actually give them the medical care they need?” said Dr. Stacy Seyb, a maternal-fetal medicine specialist in Idaho. “It’s not good medicine to make them extremely ill.”

On Wednesday, the nation’s highest court will hear arguments in the case — and the conservative majority’s opinion could have huge ramifications for states across the country.

Six other states have abortion bans on the books much like Idaho’s; instead of allowing abortions in cases where a patient’s “health” is at risk, these states—including South Dakota, Mississippi, Oklahoma, and Arizona—only allow abortions to protect the “life” of a patient to save. According to the Biden administration, these bans could conflict with Emtala.

Dr. Kristin Lyerly used to work as a gynecologist in Wisconsin, which also has a law on the books that allows only life-saving abortions and has been singled out by the Biden administration for potentially in conflict with Emtala. Today, Lyerly works in Minnesota. “I don’t feel safe practicing in Wisconsin at this time,” she said.

Abortion is still available in some Wisconsin clinics as the ban, which dates back to 1849, is challenged — but

Lyerly said some hospitals in Wisconsin have not offered the procedure since Roe fell.

a The federal court in Idaho initially agreed that Emtala protected doctors’ ability to perform emergency abortions, but in January the U.S. Supreme Court ruled that Idaho’s outright ban took effect, reversing the Biden administration’s position on regard to Emtala was pushed aside. Idaho, which is represented by the Christian law firm Alliance Defending Freedom has argued in court filings that Emtala has nothing to do with abortion and that it does not authorize doctors to perform procedures that are otherwise illegal.

In 2023, before the U.S. Supreme Court ruling, only one woman was removed from the state due to concerns for maternal complications, Dr. Jim Souza, chief medical officer of an Idaho hospital, said in a call with reporters. But since January he said, six had to be transported from Idaho.

“We can expect 20 patients to require out-of-state care this year alone,” Souza said. “Putting someone in a whirling bird and flying them to another state creates a clear delay in care that endangers the patient’s health and life. When she’s on her way and starts bleeding – and bleeding very quickly – the resources you have are no longer the resources of a tertiary care center. They are the resources of a helicopter.”

A brief filed by the organization Physicians for Human Rights in the U.S. Supreme Court case detailed how an Oregon gynecologist cared for a patient transferred from Idaho. The woman had developed preeclampsia and needed an abortion, but because she couldn’t get one in Idaho, she started bleeding so much she became anemic. Her kidneys also started to fail.

The types of cases under Emtala’s purview usually involve patients who want to be parents but face some complication that makes continuing a pregnancy dangerous, said Dr. Sara Thomson, a gynecologist in Idaho.

“When your water breaks very early in pregnancy it’s already such a horrible, heartbreaking conversation, but now it’s so much harder,” she said. “In addition to having to have that conversation, we also have to navigate: Is this patient sick enough to offer her delivery in our state? Or should we traumatize her further by talking to her about leaving the state or telling a patient that you are sick, but not sick enough to be treated now?

The doctors who spoke to the Guardian agreed: Emtala is not enough to solve the medical problems created by the fall of Roe and the expansion of the abortion ban. But Thomson said: “It’s certainly better than what we have.”

Many doctors have refused to work under these conditions and left states that, they say, prevent them from treating their patients.

In January 2023, Dr. Leilah Zahedi-Spung left her dream job as a maternal-fetal medicine specialist in Tennessee due to that state’s abortion ban. At the time, Tennessee and Idaho’s restrictions on the procedure were very similar: Instead of making an explicit exception for patients facing medical emergencies, the laws said doctors prosecuted for performing medically necessary abortions could claim an “affirmative defense” in court — a standard that critics say amounts to “guilty until proven guilty.” Both Tennessee and Idaho have since removed the “affirmative defense” provisions from their abortion bans.

Every time Zahedi-Spung had to send a patient out of Tennessee, she told the hospital where she worked that she felt like she was violating Emtala. She declined to say whether she ever performed medically necessary abortions after Roe in Tennessee, but she did hire a criminal defense attorney to protect herself.

“I would never let anyone die in front of me,” she said.

Zahedi-Spung now practices in Colorado, where she regularly sees patients fleeing abortion bans from states as close as Idaho and as far away as Florida. Zahedi-Spung also works with Miller, who decided to move to Colorado last year.

“I just couldn’t comply with a law that could easily leave a mother dead,” Miller said. “It was too against my own moral and professional codes. I refuse to be complicit in such reproductive injustices.”

Thomson wants to stay in Idaho, but she recently updated her resume for the first time in a decade, in case she decides to look for a new job. Seyb said he plans to stay in Idaho, but that the uncertainty about the future of the ban could hasten his retirement.

A 2023 survey of more than a hundred Idaho physicians, all of whose practices were affected by the state ban, found that about two-thirds were considering leaving the state in the next year. Of that share, 93% blamed the ban.

“The problem is that you pit patients and doctors against each other,” says Zahedi-Spung. “If the doctor provides the care the patient needs, the doctor is at risk. And if the doctor does not provide the care the patient needs, the patient is at risk. But neither can ever be safe at the same time.”